MROs may sound the alarm even if a DOT test is negative

Employers may be contacted when prescription meds pose potential safety risk

Posted February 19, 2018

The addition of four commonly prescribed opioids to the DOT drug testing panel effective January 1, 2018, has left some drivers and carriers with unanswered questions, especially when the Medical Review Officer (MRO) calls into question a driver’s fitness for duty.

What drugs are prohibited?

Sections 382.213, 392.4, and 391.41(b)(12) state that any drug, including over-the-counter medications, that affects a driver’s ability to safely operate a commercial motor vehicle (CMV) is strictly prohibited.

Schedule I drugs, such as marijuana, are strictly prohibited — even if permissible under state laws.

On the other hand, the regulations allow for the use of a non-Schedule I controlled substance, providing:

  • It was legally prescribed to the driver, and
  • The prescribing medical practitioner:
    • is aware of the driver’s job duties, and
    • has indicated it will not interfere with the driver’s ability to safely operate a commercial motor vehicle.

CDL driver’s opioid prescription

DOT testing procedures for safety-sensitive positions (i.e., CDL positions) recently added hydrocodone, hydromorphone, oxymorphone, and oxycodone to the DOT testing panel. All are on Schedule II of Controlled Substances.

If a DOT urine collection reveals one of these four controlled substances, the MRO will verify that the prescription meets the exception in Section 382.213 by contacting the medical practitioner who wrote the script. The test is reported to the motor carrier as a negative. However, the story doesn’t necessarily end there.

Recent changes to 49 CFR Part 40 now offer procedures for MROs who see continued use of the prescription as a safety risk. In such instances, the MRO will notify the driver that he or she has five days to arrange an alternative to the current medication. If the driver fails to act on this request and the five days elapse or the prescribing physician is unable to offer a suitable replacement, the MRO has been given the discretion to call the medication into question. He or she may contact the motor carrier, certified medical examiner (ME) that qualified the driver under the Federal Motor Carrier Safety Regulations, a Substance Abuse Professional evaluating the employee as part of the return-to-duty process, a DOT agency, or the National Transportation Safety Board in the course of an accident investigation.

What are an employer’s options?

When a motor carrier is contacted by the MRO about the driver’s prescription drug use, the motor carrier has not been given instructions on how to proceed.

The motor carrier has the option of sending the driver for a new DOT physical anytime his or her qualifications come into question. This is in accordance with Section 391.45(c). The driver, however, must be honest about his or her prescription drug use on the health history portion of the exam form. The ME makes the final determination.

The ME could:

  • Use the exception and fully qualify the driver,
  • Request another medication and withhold certification until it is rectified, or
  • Medically disqualify the driver.

Since the test is negative (and the driver has a current medical card), the company, in theory, could opt to do nothing. But, the MRO may wind up contacting the company each time the driver has a drug screen since the safety risk, in the MRO’s opinion, has not been resolved.

And, if this driver is in a serious crash, it could dredge up claims of negative entrustment since the motor carrier has knowledge of a potential safety risk.

This article was written by Kathy Close of J. J. Keller & Associates, Inc.


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